To avoid boring myself or my readers I make a conscious effort not to write about a topic repeatedly.
This week I am going to ignore that self-imposed guideline and revisit two subjects I previously addressed in this space, frivolous lawsuits and election fraud.
On Nov. 20, 2020 I discussed why Donald Trump’s legal team, including Rudy Giuliani, was saying one thing about voter fraud on TV and Twitter and something completely different in court: “It’s all about the ethical rules that govern my profession which prohibit attorneys from knowingly perpetrating a fraud upon or lying to a court.”
Why this blast from the past? Because Federal District Court Judge Linda Parker is considering whether to punish the attorneys who, on Trump’s behalf, raised baseless allegations of voter fraud in an attempt to void the results of the presidential election in Michigan.
During a grueling six-hour hearing on July 12, Judge Parker criticized the conduct of the former president’s legal team saying she was “concerned” that affidavits supporting their claims were submitted in bad faith.
"There's been no kind of minimal vetting," the judge said. "Every lawyer has that duty to do a minimal amount of investigation before filing evidence or what's purported to be evidence to this court."
The duty Judge Parker referenced is spelled out in Rule 11 (b) of the Federal Rules of Civil Procedure which states that by presenting a pleading to the court an attorney or unrepresented party certifies:
• It is not being presented for any improper purpose, such as to harass…
• The claims … and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
• The factual contentions have evidentiary support … and
• The denials of factual contentions are warranted on the evidence.
As I noted in my Nov. 20 column, lawyers who violate Rule 11 face sanctions up to and including disbarment which explains why the vast majority of attorneys do not file frivolous or baseless lawsuits.
Judge Parker is not the only jurist expressing concern about the conduct of the former president’s legal counsel. On June 24, a New York appellate court temporarily suspended Giuliani’s license to practice in that state after concluding "there is uncontroverted evidence" that he "communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump … in connection with Trump's failed effort at reelection in 2020."
On July 7 the Washington, D.C. Court of Appeals also suspended Giuliani’s license pending the outcome of disciplinary proceedings in New York. The suspensions while imposed by state courts bar the former NYC mayor from practicing in federal court because he is, at least temporarily, not a member in good standing of a state bar.
I applaud Judge Parker and her colleagues for holding attorneys who file baseless or frivolous lawsuits accountable for their actions. Their dedication to and respect for the rule of law stands in sharp contrast to those — and especially one person who shall remain nameless — who attempt to use the courts for personal or political gain.— Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to firstname.lastname@example.org.